New York State Court of Claims

New York State Court of Claims
MOSBY v. THE STATE OF NEW YORK, # 2019-041-057, Claim No. 115977, Motion No. M-94376

Synopsis

Claim is dismissed for failure to prosecute pursuant to CPLR 3216.

Case information

UID: 2019-041-057
Claimant(s): MALIK AZ'RAEL MOSBY
Claimant short name: MOSBY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115977
Motion number(s): M-94376
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: NONE
Defendant's attorney: HON. LETITIA JAMES
NEW YORK STATE ATTORNEY GENERAL
By: Douglas R. Kemp, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 30, 2019
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss the claim pursuant to CPLR 3216, asserting that claimant has unreasonably failed to proceed and to serve and file a note of issue. Claimant has not appeared in opposition to the defendant's motion to dismiss.

The claim was served on the Attorney General on October 30, 2008 and defendant's answer was served, and issue joined, on November 26, 2008. An amended claim was served on the Attorney General on January 15, 2009 and defendant's answer to the amended claim was served on January 30, 2009.

On April 3, 2019, defendant mailed to claimant, by certified mail, return receipt requested, a demand pursuant to CPLR 3216 that claimant serve and file a note of issue within ninety (90) days after receipt of the demand. The certified mail was sent to claimant's last known address on file with the Clerk of the Court of Claims.

The certified mail was returned to defendant because claimant no longer resides at the address on file with the Clerk of the Court of Claims. Claimant has not provided a new address to the Clerk of the Court of Claims as required by 22 NYCRR 206.6 (f).

Claimant has failed to comply with defendant's lawful demand that claimant serve and file a note of issue.

CPLR Rule 3216 (a) provides, at relevant part, as follows:

"Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party's pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits."

Defendant has complied with the requirements of CPLR 3216 (b) by offering proof that more than one year has elapsed since the joinder of issue and by showing that it has:

"[S]erved a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed" (CPLR Rule 3216 [b] [3]).

The claim must be dismissed based upon claimant's unreasonable failure to proceed generally and his unreasonable failure to file and serve a note of issue, as lawfully demanded.

The defendant's motion is granted. The claim is dismissed.

August 30, 2019

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion to Dismiss, filed August 9, 2019;

2. Affirmation of Douglas R. Kemp, dated August 9, 2019, and annexed exhibits.